Tuesday, June 16, 2009

Judicial reforms – need of the hour M.L.Dhar

Shri Veerappa Moily’s statement soon after taking over the charge of the Law Ministry that the UPA Government would stress during the next five years on judicial reforms and also ensure that rule of law touched every individual including the last man in queue would go a long way to realize “simple, speedy, cheap, effective and substantial” justice. And what is more noteworthy of Shri Moily’s statement is that judicial reforms could not be partial or fragmented. He said, "It has to be holistic. Merely tackling one side will not help."
The institution of judiciary and the rule of law is the essence of modern civilization and democratic governance. It is important that people’s faith in judiciary and the rule of law is not only preserved but enhanced as well and simple way to achieve that is by ensuring an effective system of justice delivery.
For decades judicial system has been crying for reforms as the cheap and speedy justice has been by and large elusive. There is a huge pendency of over 2.5 crore cases despite measures to reduce it. Experts have expressed fears that there has been a loss of public confidence in the judiciary, and an increasing resort to lawlessness and violent crime to settle disputes. They feel that public confidence in the judiciary must be restored immediately, in order to arrest and reverse this negative trend.
Over the last five decades various legally constituted/government authorities such as the Law Commission of India, Parliamentary Standing Committees, and other government appointed Committees, several benches of the Supreme Court, eminent lawyers and judges, various legal associations/ organizations and NGOs have identified problems in the judicial system and called for addressing them speedily. Yet, the effective implementation of many such recommendations is still pending. According to one of the Parliamentary Standing Committee on Home Affairs (2001) almost 50% of the reports of the Law Commissions awaited implementation.
The poor budgetary support to the judiciary has been alluded to as one of the reasons for non-implementation of judicial reforms. Rs.700 crore allocated to the judiciary during the 10th Plan (2002-2007) constituted 0.078 percent of the total plan outlay of Rs. 8,93,183 crore. During the Ninth Plan the allocation was even less, only 0.071percent. It has been observed that such meager allocations are too inadequate to meet the requirements of the judiciary. It is said that India spends just 0.2 percent of the gross national product on judiciary. According to the first National Judicial Pay Commission, all states but one have been providing less than 1% of their respective budgets for subordinate judiciary which is afflicted with huge pendency.
But, lack of resources cannot be a reason for denying justice or any other fundamental right to most citizens, especially the disadvantaged sections, who “have limited access to justice, due to unclear laws and high costs that act as effective barriers”. Observing that ‘justice delayed is justice denied’ in P. Ramachandra Rao v. State of Karnataka (2002), a Constitution Bench of the Supreme Court reiterated from Hussainara Khatoon case that “It is theconstitutional obligation of the State to dispense speedy justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21,19 and 14 and the preamble of the Constitution as also from the directive principles of State policy. It is high time that the Union of India and the various States realize their constitutional obligation and do something concrete in the direction of strengthening the justice delivery system.”
Other major factors include neglect in improving judicial infrastructure over the past decades, inordinate delays in filling up vacancies of judges and very low population-to-judge ratio that require immediate attention to improve the performance of judiciary.
The 120th Law Commission Report had pointed out that India's population-to-judge ratio is one of the lowest in the world with only 10 judges for every million of its population as compared to about 150 judges for the same number in the United States and Britain. According to the ‘All India Judges’ Association’, the Supreme Court had directed the government to increase the judge strength to 50 judges per 10 lakh population by 2007 in a phased manner, which has mot been fulfilled so far.
Even for filling up of vacancies of approved strength of judges much needs to be done. It is observed that 25 percent of the judge positions remain vacant due to procedural delays. The sanctioned strength of judges of the High Courts was 886 and working strength was 608 as on 6th January 2009 leaving 278 vacancies. Similarly, with 11,767 working strength of Subordinate Judges there were 2710 vacancies on March 1, 2007.
However, there have been measures in recent years to improve functioning of courts. For application of information and communication technology (ICT) to the justice delivery system for better management, a Scheme for computerizing all the district and subordinate courts across the country and for upgrading the ICT infrastructure of Supreme Court and High Courts was approved by the central government in February 2007 to be completed in two years at cost of Rs.442. Under the project 13,365 laptops have been provided to Judicial Officers, laser printers to about 12,600 judicial officers and eleven thousand judicial officers and 44 thousand court staff have been given training in the use of ICT tools so far. 489 district court and 896 taluka court complexes have been provided with broadband Internet connectivity. Under this Project, computer rooms are to be set up in all the court complexes in the country. The E-enabling will help the courts to function more efficiently and speed up the disposal of cases. It would also network these courts with the higher courts and thus facilitate greater accountability.
Another centrally sponsored scheme for development of infrastructure facilities including setting up of court buildings and residential accommodation for the judicial officers is under operation since 1993-1994. Rs. 286.19 crore were released to the States from 2006-07 to 2008-09 under this scheme. The outlay for the judiciary during the 11th Plan has been sought on the basis a perspective plan having projections of such requirements over a ten year period.
Meanwhile, the disposal of cases can be increased by greater use of the existing infrastructure with courts having more than one shift. Gujarat is one of the states where evening courts are functioning with appreciable results.
Fast Track Courts (FTC) recommended by 11th Finance Commission have also proved effective in addressing pendency. Keeping this in mind the government has already extended the term of 1,562 FT courts operating at sessions’ level up to 31st March 2010 by providing central support to the states. As per union Law Ministry, these courts have out of 28.49 lakh transferred cases to them disposed off 21.83 lakh cases.
The Central Government proposes to set up more than five thousand Gram Nyayalayas at intermediate panchayat levels under the Gram Nyayalayas Act, 2008 in order to bring justice delivery system at the door step of rural population. The procedure to be followed by these courts has been kept simple and flexible so that these cases can be heard and disposed of within 90 days' period.
Recourse to Alternate Dispute Redressal (ADR) mechanism can greatly help in reducing pendency of cases through arbitration, negotiations, conciliation and mediation.
In the United States and many other countries, ADR as dispute resolving mechanism has been highly successful. India already has Arbitration Conciliation Act 1996 and the Code of Civil Procedure has also been amended. However, the measure suffers from grossly inadequate number of trained mediators and conciliators. Both judicial officers and lawyers need to be trained with a view to grow alternate system into the mainstream of justice.
While all these measures need to be further strengthened and expanded, the reforms would have to keep in view future needs as litigation is bound to increase in future with more sections of society becoming aware about their legal rights as a consequence of the spread of education.
The government will have to take an overall view of procedural laws that allow endless interlocutory appeals and the role of ‘delay lawyers’ in posing impediments to resolve cases. Despite the Criminal Procedure Code (Amendment Act) 2002, bringing change in the procedure in suits and civil proceedings by way of reducing delays, the situation remains far from satisfactory. The issue of frivolous litigation will also have to be addressed and one of the ways could be by imposing heavy costs. The police investigation system needs to be strengthened and modernized that would decrease load on judiciary.
While having a holistic view of all the intricacies and nuances of the justice delivery system, its present pitfalls and fault lines will have to be considered to ensure transparency and accountability of the judicial system.
It has to be remembered that delayed justice, poor appreciation of evidence, and inability to apply constitutional and legal principles to real-life situations play havoc with people’s lives.
The new Law Minister will have to put in extra effort to create a strong will across the board for judicial reforms and carry all the state governments, judicial and executive bodies and bar associations along. The success of judicial reforms would largely depend upon it. (PIB)

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